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Attorney Wayne, Lawyer

Category: Intellectual Property Law

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Experience: Practicing Law Since 2000

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Hello! I just received my copyright certificate of registration

Customer Question

Hello! I just received my copyright certificate of registration (VAU001114413) from the Library of Congress on a jewelry piece. The effective registration date is 4/7/2012. I was also in the process of putting a patent on the piece but during the patent search they found a patent very similar to my piece that has already been submitted to the patent office, Publication # XXXXX 2013/0086943 A1 Cuff bracelet with storage section which was filed 9/24/2012. Needless to say I did not move forward with the patent process. My question is: Since I own the copyright to a piece VERY similar to the patent, and since my copyright effective date started prior to the file date on the patent do I have any recourse to prevent the patent from going through? Can I continue to move forward with my piece since I own the copyright to it? Do they have any legal recourse against me? I assume it's a first come first serve type of thing.

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Hello. Thanks for contacting us. I am sorry to hear of this situation when one's own ingenuity and hard work is at stake.

The thing is, patents and copyrights are for completely different things -- so there are some questions to ask to determine whether there is overlap, or even if there is possibly a misuse of patent.

Copyright protects expression. It stops someone from casting a mold of the jewelry piece and making knock-offs. It also can stop use of certain identifiable expressive elements, if they are original -- although this is harder in visual arts than it is in music (where a few notes' riff can be the identifiably expressive element that as everyone humming along).

Looking at only a picture does not indicate much as far as patent goes. It is imperative to review the entire patent filing to see exactly what is being claimed. For a bracelet, it may the way the clasp connects etc.

While copyright is fairly straightforward, with registration possible by someone without expertise in copyright law, patents tend to be highly technical. Experts are usually required (unless the inventor has some training in filing) in order to succeed in registration. This is true because while copyright registration is not reviewed by any official, patents are reviewed by government "patent examiners" who have expertise in the science or engineering of the field. The patent application must show that the thing being patented is "novel" by reference to "prior art" -- which means whatever inventions came before it.

There is a window in which those who have invented something before the patent holder can challenge the patent filing. And for this, a patent lawyer is the best weapon.

He or she can analyze the other patent, in light of one's own product, and determine if there is (a) possible overlap of the patentable thing (not the superficial appearance, the process, formula, principle etc that is patented).

Also, because patent and trademark are separate, if the bracelet that has a copyright was first, it may be possible to bring action against the patented item for infringement because of the substantial similarity in appearance. This, unlike registration, is not an easy case for someone without experience. It requires showing exactly what in the expressive part of the jewelry was copied, and whether the copying gets to the core of the expressive element -- rather than simply used similar concepts based on generic knowledge. Figure it this way: Rodin's thinker has a certain physiognomy. Were it new enough for copyright, that physiognomy would get copyright protection. But a statue simply striking that pose would not infringe because the heart and soul of the expressive element was not taken.

In sum:(1) Check the actual claims in the patent to see what is being patented. A picture is not sufficient to tell.

(2) If the patent makes claims on an invention that you had created prior to the filing, immediately get a lawyer to help. Evidence is crucial -- but there may be a chance to overturn the patent because the rule is not that the first to file gets the patent, but that the first to invent gets it.

(3) At the same time, look closely at the patented jewelry and see how much it looks like the item that was copyrighted. The more alike, the better the chance to use copyright law to stop the sale (and possible collect cash damages) from the patent holder. Even if the method of fabrication or doing business related to the patented item is legitimate, copying the expressive features is not. (Copyright and Patent are separate --they do not defeat each other. Think of it as the same relationship between a pilot's license and a chauffeur's license. One does not override the other, since they are for different things!)

Hi again.Just checking if you have any follow up on the copyright question. If so, please post it in the next text box. If not, please remember that experts only get paid if the customer rates them good or excellent. Thanks for your consideration in closing the question out!

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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